Physical Punishments (as in Islam) Vs Imprisonment
Intellectual Hikmah
Muslims have often come across many people who associate Islam with stoning, Hand-Chopping and terming them as "Harsh", "Barbaric'. While it is true that these punishments do feature in Shariah (Islamic Law), their applications has to met with the strict restrictions and meticulous conditions that should be carefully considered.
Are Physical punishments really "Harsh" and "Barbaric"?
This can be better answered by the distinguished scholars who have dealt the Topic of Punishment in detail.
One example of such a scholar and Philosher is Michel Foucault. He writes in his book "Discipline and Punish" on how the corporal punishments have diminished from the society and its negative consequence :
Punishment had gradually ceased to be a spectacle. And whatever theatrical elements it still retained were now downgraded, as if the functions of the penal ceremony were gradually ceasing to be understood, as if this rite that ‘concluded the crime’ was suspected of being in some undesirable way linked with it. It was as if the punishment was thought to equal, if not to exceed, in savagery the crime itself, to accustom the spectators to a ferocity from which one wished to divert them, to show them the frequency of crime, to make the executioner resemble a criminal, judges murderers, to reverse roles at the last moment, to make the tortured criminal an object of pity or admiration. As early as 1764, Beccaria remarked: ‘The murder that is depicted as a horrible crime is repeated in cold blood, remorselessly’ (Beccaria, 101). The public execution is now seen as a hearth in which violence bursts again into flame.
He further states:
The disappearance of public executions marks therefore the decline of the spectacle; but it also marks a slackening of the hold on the body. In 1787, in an address to the Society for Promoting Political Enquiries, Benjamin Rush remarked: "i can only hope that the time is not far away when gallows, pillory, scaffold, flogging and wheel will, in the history of punishment, be regarded as the marks of the barbarity and as proofs of the feeble influence of reason and religion over the human mind" (Teeters, 1935,30)
The above statements clearly shows that these corporal punishments were once a norm and were not seen as "harsh" and "barbaric".
Foucault's views have been summarised by Susan Hascall, a Law Professor, in her opening words to the paper "Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice?"[1], She states:
For Foucault, the constant monitoring of the prisoners’ every movement by prison officials abolishes their very humanity. Foucault’s ideas are compatible with both restorative justice ideals and the ideals of Islamic criminal jurisprudence in general, and in particular, the law of qisas (a category of crime that includes intentional homicide and wounding)[2].
Similar views have also been shared by others, like US law professor Peter Moskos who recently pointed out in his book "In Defense of Flogging",
the notion that imprisoning someone in a cell is somehow more humane than subjecting them to brief but intense bodily pain is a collective cultural fiction. And it is totally belied by the reality of prison-life in America. Even societies in which vicious corporal punishment was common, notes Moskos, “rarely if ever placed a human being in a cell for punishment.” “Consequently,” he concludes, “that we accept prisons as normal is a historical oddity.”[3]
On Islamic Corporal punishments
The different punishments/penalties prescribed by Shariah are not in order to inflict harm on people and make them suffer; rather the Shariah concept for imposing penalties for the various crimes is that they prevent harm, destruction and anarchy in the society. They are not prescribed in order to harm people, but the contrary. They act as a deterrent.
Allah Most High says:
“In the law of retaliation there is (saving of) life to you, O you men of understanding.” (Surah al-Baqarah, 179)
The idea behind these various penalties being imposed is not to make an individual suffer, rather to create a better society as a whole, for this the Shariah laid down certain strict rules and conditions in order for the punishment to be established or enforced. These strict conditions can be seen in all the various penalties that have been imposed.
If the various conditions are met then and ONLY then the punishment is carried out, otherwise they are not enforced.
The objective of laying down strict and stringent conditions is not to get the individual punished rather to save him/her from the punishment. This will become more evident with the following incident that took place in the time of the Messenger of Allah (Allah bless him & give him peace):
Sayyiduna Abu Hurayra (Allah be pleased with him) narrates: “A man from amongst the people came to the Messenger of Allah (Allah bless him & give him peace) while he (the Messenger of Allah) was sitting in the Masjid, and addressed him, saying: “O Messenger of Allah! I have committed illegal sexual intercourse.” The Messenger of Allah (Allah bless him & give him peace) turned his face away from him. The man came to that side to which the Messenger of Allah (Allah bless him & give him peace) had turned his face, and said: “O Messenger of Allah! I have committed illegal intercourse.” The Messenger of Allah (Allah bless him & give him peace) turned his face to the other side, and the man came to that side. When he confessed four times, the Messenger of Allah (Allah bless him & give him peace) called him and said: “Are you insane?” He said: “No, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace) said: “Are you married?” He said: “Yes, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace) said (to the people): “Take him away and stone him to death.”[4]
The above incident shows the importance of trying to avert a legal punishment as much as possible. The man came and confessed to the Messenger of Allah (Allah bless him & give him peace) that he had committed unlawful sexual intercourse, yet the Messenger of Allah (Allah bless him & give him peace) ignored him, in order that he may change his mind.
This (trying to avert a legal punishment) has been explicitly mentioned in one Hadith.
Sayyida A’isha (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.”[5]
With the restrictions that have been laid down by the jurists (Fuqaha), it is “nearly impossible for a thief or fornicator to be sentenced, unless he wishes to do so and confesses.” as described by scholar Rudolph Peters.[6]
Finally, one should remember that it is not necessary in order for one’s sin to be forgiven that he/she receives the legal punishment (hadd) for the sin committed. The reason being is that one is not obliged to confess that he/she committed adultery; hence one may keep the sin hidden and not inform the Islamic judge about it. Also the various Islamic legal punishments (hudud) are only carried out in an Islamic state (dar al-Islam) by the Imam, thus repenting to Allah Almighty will be sufficient.
So are corporal punishments better than imprisonment?
The objective of a punishment has to be understood here, and must be looked as to which provides an easy way of achieving this objective.
Dr. Jonathan expalins:
[P]re-modern states did not have the means to engage in the type of law enforcement that we consider normal today, particularly preventative policing and the investigation of mundane crimes. This important fact lies behind the severity of punishments found in Islamic law and in many pre-modern legal systems for that matter. Though scholars of criminal law continue to disagree on the best means of deterring crime, a common approach has been the utilitarian one formalized by Bentham. Its basic premise is the following equation:
(E)xpected Punishment/Deterrent power = (S)everity of Punishment x (P)robability of getting caught…. E = S x P [7]
In a system where there are few or no police or where the police do not busy themselves investigating crimes, moderately intelligent criminals faced little chance of being caught. According to the E = S x P equation, if the probability (P) of being caught is minuscule, then in order for any meaningful deterrent effect to be created the severity of punishment (S) must be mammoth. Frightening punishments were seen as the only way to deter potential criminals whom police (what few there were) would never be able to reach.
And we can see how the mindboggling advances in technology and administrative capacity in the mid 1800’s changed Britain’s legal landscape. More effective policing, better prisons and, more importantly, better municipal services and a much-advanced economy meant that more offenders were caught and convicted. (P) went up dramatically, so (S) dropped accordingly. By 1900 Britain had only four death-penalty offenses.
As Muslims, we believe that the Sharia is the ideal law in acheiving this objective and that the corporal punishments in Sharia are valid in theory and it's actual implemention is under the control of ruler/state and is not necessary for people to be Muslim[8] If there are other alternatives.
End remarks
The charge that the corporal punishments enforced in Islam as "Barbaric and "Harsh" is unjust as we see the imprisonment(the punishment as in today's time) is also not free from this charge.
As Dr. Jonathan Brown puts:
It’s worth considering that the crimes human societies have judged the most acutely harmful – murder and rape – are not included among the agreed upon Hudud crimes. Perhaps the Hudud are not necessarily the most grievous crimes in terms of the toll they take on their victims or society. Fornication and Hudud-level theft are offenses almost by definition done in private, as intoxication could be as well. They are done out of the sight of all but God. Perhaps these stringent laws, which God’s mercy has made almost impossible to apply, exist primarily to remind people of the enormity of the sins that they usually get away with.
Recommended read - Stoning and Hand Cutting—Understanding the Hudud and the Shariah in Islam by Dr. Jonathan Brown availbe from : http://drjonathanbrown.com/2017/stoning-and-hand-cutting-understanding-the-hudud-and-the-shariah-in-islam/
Footnotes
[1] - Susan C. Hascall, "Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice?" available from: http://scholarship.law.berkeley.edu/jmeil/vol4/iss1/2/
[2] - A word about the taxonomy of crimes in Islamic law is necessary for the reader who is not familiar with Islamic criminal law. There are three main types of crimes in Islamic law, the hudud, qisas and tazeer. The hudud crimes are those with a “fixed” penalty. They are considered crimes against God, and their punishments are proscribed in the Qur’an, and sometimes in the Hadith. Although there is some disagreement as to the crimes that are considered hudud, they generally include theft, zina (fornication and adultery), false accusation of zina, apostasy, drinking alcohol and highway robbery. Each of these crimes is punishable by some form or corporal punishment. The qisas crimes include intentional wounding and intentional homicide. The tazeer (or tazir) crimes are other wrongs against persons or the state but for which the punishment is not proscribed in the Qur’an, and the punishment is left to the state or the discretion of the judge.
[3] - Peter Moskos, In Defense of Flogging (New York: Basic, 2011), 50.
[4] - Sahih al-Bukhari, no: 6439
[5] - Sunan Tirmidhi, no: 1424
[6] - Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005), 54.
[8] - Shaltut, Fatswa, 45; Jumʿa, al-Bayan, 71; Bin Bayyah, Tanbih, 83-4.